A change in the legislation on the, as articulated in, should not impact the case against the former president (), according to the assessment of at least a part of the ministers of the (Federal Supreme Court).
The main reason is the forecast of the trial to take place in September, with the defenses already close to. It is believed in the Supreme that there will be no time to approve the change in the forum before the defendants’ sentence of the coup attempted.
Another argument used by court members is the existence of jurisprudence defining that changes in the understanding of the forum do not reach processes that are in the phase of final allegations.
This discussion was consolidated in the court in a matter of order in the criminal action against former federal deputy Marquinhos Mendes (MDB-RJ). The controversy arose in the face of recurring changes in jurisprudence on the forum by prerogative of function.
The change in the special forum was articulated this week during the riot of Bolsonarist parliamentarians opposed to Jair Bolsonaro’s house arrest.
Partidos do centrão e da oposição fecharam um acordo para acelerar a votação de um projeto sobre o tema. The idea is to prohibit investigations against deputies and senators until there is no prior approval of Congress and establish three degrees of trial for lawsuits against congressmen, removing cases from the Supreme Court.
In order to prevent politicians from being able to force their proceedings to lower instances, leaving office on the eve of the trial, the Supreme decided that the new rules would not apply to the final phase criminal actions.
A (Procuradoria-Geral da República) tenta confirmar essa jurisprudência no Supremo. On Tuesday (5), the prosecutor filed an appeal asking that criminal proceedings already undergoing final allegations would be maintained in the courts of origin.
The theme came on the agenda after the Supreme Court decide in March, to keep investigations of authorities even after they left the positions.
In the appeal, Gonet states that the PGR has identified practical effects of the change in the case law of the Supreme Court on the special forum that has caused backward processes in the final phase.
For the prosecutor, changes in the competence of these criminal actions “are not compatible with the institutional objectives that motivated the revision of the current understanding.”
The PGR understands that the jurisprudence of the Supreme Court was created to avoid investigative setbacks and slowness in criminal proceedings, under penalty of ineffectiveness of the judiciary.
“From a probative perspective, the rupture in conducting criminal prosecution projects sensitive effects on the principle of natural judge in its instructional dimension,” says Gonet.
The Supreme must judge Gonet’s appeal in the coming weeks in the virtual plenary.
Lawyers who work at the Supreme Court and members of the Court also say that, as Minister Alexandre de Moraes was one of the victims in the case of scammer plans, the Court’s internal regiment could attract the competence of the case to the Supreme Court.
Professor of Criminal Procedural Law at USP, Gustavo Badaró understands that jurisprudence on the non -movement of proceedings in final allegations does not fit the case of Bolsonaro.
“This jurisprudence is for when the person was in office and leaves office when the process is already in final allegations. If there is a change in the constitution, the situation is different,” he says.
Badaró argues that legislative changes on competence criteria should not apply to ongoing processes because it would affect the concept of the natural judge established in the Constitution.
This, however, has not been the evaluation of the Supreme. “The Supreme always understood that legislative changes of competence affected the ongoing processes […] Therefore, if there is a PEC that extinguishes the forum by prerogative of function, in theory, if the Supreme is consistent with its jurisprudence, this PEC will be applied to the ongoing proceedings, “he adds.
Criminal lawyer Daniella Meggiolaro understands that changes in forum legislation has immediate application.
“In theory, the process that runs in the Supreme, he would have to come down to the first instance, regardless of the procedural moment. This question of the final allegations, the proposal of the PGR, is a proposal to pacify the proper time of return of the case or submission of the case to the forum in which he is running.
In Congress, parliamentarians are still trying to approve a project that grants amnesty to those involved in the January 8 attacks and start a impeachment process of Minister Alexandre de Moraes no.
The assessment in the Supreme is that the impeachment of Moraes should not advance. Senate President David Alcolumbre (Brazil-AP Union) indicated party leaders that he will not follow the process even with the 41 signatures of senators favorable to the withdrawal of the Supreme Minister.
Two ministers heard by Sheet They also point out that this week’s pocket riot and the purpose of ridding the former president of eventual conviction buried the amnesty proposal in Congress-still being considered unconstitutional in the Supreme.
